A New York Secret

[Not to be disclosed without authorization of the Third Deputy Assistant Grand Poobah.]

Many contend that agencies of the United States tend to mark too many documents “secret” or “top secret,” or maybe even “super-de-duper secret.”  After all, it’s only the lunch order, and while it does relate to the special sauce, it really lacks sufficient impact to invoke the Espionage Act of 1917.

But the New York City Police Department has gone one better, apparently deciding that if the feds can use really cool secret classifications for documents, why not them?  What? There’s no law creating such a methodology or allowing such a classification? They don’t need no stinkin’ law.  From Matt Sledge at Huff Post:

Since at least 2003, the New York Police Department has been labeling some of its internal documents “Secret,” a designation that has baffled government secrecy experts, journalists and civil liberties lawyers.

Experts consulted by The Huffington Post also said the practice has no basis in New York state law.

“You know what that [label] means? It means diddly,” said Robert Freeman, executive director of New York’s Committee on Open Government. “I think the police department is following the lead of the federal government. The difficulty is, in my opinion, it does not have a legal basis for doing that.”

It may mean diddly under the law. It may have no legal significance to those close-minded folks who don’t have future vision, but to the NYPD, it has a stamp and it’s not afraid to use it.

By labeling documents “secret,” the Intelligence Division appears to be operating its own in-house classification system, similar to those used at federal agencies like the CIA, where Intel’s chief, David Cohen, previously worked for 35 years. Unlike at the federal level, however, no statute or public executive order appears to support the use of the “NYPD Secret” label.

It is because NYPD says it is, and that’s good enough for them. After all, in this age of terrorism, doesn’t every law enforcement agency with the capacity to spy and drones of its own need a “secret” stamp?  But aside from having cool looking documents, what’s the actual impact of fabricating “secret” classified documents out of thin air?  A self-justifying means of concealing things, according to Techdirt’s Tim Cushing.

The NYPD remains a law unto itself. Bloomberg has referred to it as the “seventh biggest army in the world” (and his own “personal army”) and has, over the course of his three terms, indulged every excess.

Every excess? Well, sure there have been many, but “every” is unnecessarily hyperbolic, since there remain many excesses left to plumb.  Let’s not give the NYPD more credit than it has earned.

And it would appear that the NYPD still has lots of secrets it’s not willing to share with the public. HuffPo points to this story from 2011 in which Chief Kelly makes the claim that the NYPD could “take down an airplane” thanks to its anti-aircraft weaponry. That itself should be troubling enough and a strong indicator that Bloomberg and Kelly are better qualified to run a banana republic than an American city, but when asked to comment on the PD’s anti-aircraft guns, Bloomberg responded with this smirk of a statement:

“New York City Police Department has lots of capabilities you don’t know about and you won’t know about them.”

That’s comforting. Nothing like having the commander-in-chief of the “seventh biggest army in the world” tell you his force might have even bigger tricks up its sleeve than anti-aircraft weapons.

The broader issue is well framed Donald Rumsfeld’s “unknown unknowns” explanation:

Once an agency, like NYPD, decides to make up its very own secret stamp, and thereafter abide by it, is there any assurance that FOIL requests, subpoenas, orders directing disclosure are honored? After all, the content becomes an unknown unknown, where neither party nor court has any assurance that a null return means there are no responsive documents or they decided not to provide them because they bear the “secret” stamp.

Since this is a wholesale, in-house fabrication, there are no statutory constraints or oversight, no rules for when something becomes a “secret” or is declassified. It is whatever the guy with the stamp says it is, whether Ray Kelly’s custom-made suit order or the plans for deployment of the next generation drone.  And no one (except the cool insiders) will know it exists, and thus be in a position to challenge its existence.

On the bright side, Mayor for life Bloomberg will be leaving soon and the front runner for his position, Bill De Blasio, gave the police force a failing grade for its responsiveness to FOI requests and will be likely looking to force the PD to shoot for a low-C at minimum. If Chief Kelly sticks around, though, De Blasio will have an uphill battle to fight against the ingrained arrogance and contempt that pervades the NYPD’s upper management.

Tim may be a bit overly optimistic here.  If Bill De Blasio keeps Police Commissioner Ray Kelly on at 1 Police Plaza, then his purported lack of enthusiasm of Kelly’s initiatives, like the dreaded stop & frisk, faux secret classification and the root of too much evil, CompStat, belies De Blasio’s sincerity as well.  Maybe the things he said to get elected won’t be the same things he says should he wear the Mayor’s hat?  It can happen, you know. This is what Rummy would call a known unknown, and should it come to pass, will readily be seen.


4 thoughts on “A New York Secret

  1. JimBill

    I hope the AAA teams get better weapons handling and situational awareness training than their peers you wrote about in “The Rhetoric of Bad Aim”. Or maybe NYPD Officers only get that training after their “Secret” clearance goes through.

  2. Nigel Declan

    If only we could get Bloomberg and Kelly to stamp each other with that special stamp, maybe we wouldn’t have to listen to their pseudo-legalistic claptrap any more.

  3. TomH

    Perhaps an intrepid reporter or like minded person with time and resources on their hands (ruling me out) could FOIL all documents marked secret over the past year or two and follow up with an appropriate lawsuit when it is declined. At least then the alleged rules would be disclosed.

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